19 March 2014

Constitutional illiteracy

The public know one thing about the British constitution, and it isn't true. The criminal lawyer is always asked how she can bear to represent a defendant who she suspects to be guilty of some ghastly offence. The constitutional lawyer is always ribbed because he doesn't really study anything at all.

I've lost count of the number of times a twinkly pub bore has advised me that "there's no such thing as a UK constitution". As my undergraduate students will tell you, perhaps to their regret, for all of the confident simplicity of the over-refreshed citizen's legal analysis, this isn't really the case. We may have no single foundational document headed "we the people" which you can point to as the wellspring of constitutional ideas in Britain, but we are not without fundamental principles and concepts around which our law and politics are organised. 

The sovereignty of parliament is one of those fundamental principles. In its most basic formulation, it means that parliament can make or unmake any law it pleases. Under a codified constitution, legislative power is characteristically established subject to limitations. If an Act violates constitutional rights, for example, courts may step in and declare the legislation invalid, unconstitutional. In the UK, by contrast, parliament is sovereign today, sovereign twenty years ago, and sovereign tomorrow. The representatives forming it may age, may resign, may die, but election to election, decade to decade, the parliament remains possessed of its unalienable sovereignty. In practice, this means that no parliament can bind its successors, and every piece of legislation is vulnerable to repeal if a majority in the Lords and Commons can be mustered for it. 

This orthodox account has been considerably shaken by the implications of Britain's membership of the European Union and the supremacy of European law. The law on the books diverges significantly from political practice. There is also a long-standing dispute about the extent to which Westminster is empowered to disapply fundamental provisions of the Act of Union.  

But in general terms, most if not all constitutional lawyers in the UK recognise that without jettisoning the idea of parliamentary sovereignty and establishing a new and more limited legislature under a written constitution, entrenching Bills of Rights or statutes is a non-starter.  The Blair government recognised as much when it introduced the Human Rights Act 1998.  Elements of the Conservative Party are keen to exercise this authority to "Axe the Act" after the next general election. The same legal vulnerability extends to the devolution settlement.

That context in mind, I read Scottish Labour's wheeze to "entrench" devolution with interest. Yesterday's devolution commission report reads, in part:

"The Scottish Parliament is a permanent feature of the UK constitution and that legal provision should be made to reflect the political reality that the Scottish Parliament is indissoluble and permanently entrenched in the UK constitution. We also recommend that the “Sewel convention” should be given a statutory basis. This should be enshrined in law to give effect to the convention that the UK Parliament regards the right of the Scottish Parliament to legislate for the matters it properly controls, and that its powers cannot be changed without its consent."
 
But can it be done? In a limited sense, perhaps. Westminster may be able to immunise the Scotland Act against implied repeal. But express repeal? Without a revolution in British constitutional law, that's a non-starter.

Consider this scenario, which might as well be a problem in an undergraduate tutorial. Having defeating the perfidious Scottish Nationalist forces in the September referendum, in early 2015, Westminster amends the Scotland Act to fulfil Labour's ambition to "permanently entrench" devolution. Section 1(1) of the Act provides that "there shall be a Scottish Parliament". After this provision, MPs sneak in the amendment that "Section 1(1) of this Act shall not be susceptible to repeal or amendment by any other enactment or subordinate legislation in all time coming."

Whizz forward a month or two, and MPs find themselves once again embroiled in a corrosive expenses scandal, accompanied by a fresh financial crisis. Capitalising on the public disquiet, a buoyant Nigel Farage leads UKIP into an unexpected triumph in the general election poll, forming a minority government in the Commons. Supported by disparate and disgruntled elements of the Labour and Conservative MPs, Farage introduces a Bill to repeal the Scotland Act and abolish the Scottish Parliament tout suite.

Passing the Lords and Commons by the slimmest of margins, the monarch follows convention, giving royal assent to the legislation. Outraged, MSPs mount a legal challenge, arguing that the 2015 amendment prohibits Farage's parliamentary majority from taking the step, and the purported abolition of Holyrood was ineffective. Imagine you are one of the justices sitting in the UK Supreme Court hearing the case. What do you do?

The orthodox answer is that parliament cannot bind its successors, and the later, explicit enactment prevails over the earlier prohibition on MPs meddling with Holyrood. Despite its stern language, interpreted in the light of basic constitutional principles, the amendment was legally ineffective fluff; the Scottish version of section 18 of the European Union Act of 2011. Politically significant, perhaps - a declaration of intent on the part of legislators - but no legal let or hindrance on parliament obliterating Holyrood if it acquired the inclination so to do.

Nothing in the Labour document shows an awareness of any of this. It is difficult to disagree with Ian Smart's assessment, in a trenchant critique of the Labour report last night:
"And as for the idea that the Scottish Parliament could not be abolished without its consent? Where to start. Certainly, even now, that would be politically unthinkable, but for that to be "outlawed" wouldn't be possible without ripping up the UK's unwritten constitution and starting again with a properly written one. For what it's worth, once again, I am personally for that but that constitution can't be written unilaterally by less than ten percent of the UK's population, let alone by one political Party within it."
Quite.

26 comments :

  1. Surely parliamentary sovereignty is to all intents and purposes the OPPOSITE of a constitution? To define it otherwise seems to be an extreme contortion of language, reminiscent of 1984's talk of "collective solipsism".

    What is the purpose of a constitution if not to set limits which a here-today-gone-tomorrow government can't just trample on a whim? Does the word "sovereign" not inherently imply a sort of monarchical power (all too real in the case of the UK), held in a single entity, not unlike the Fuhrerprincip - "the Führer's word is above all written law"?

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    1. Rev,

      I see what you're saying, but I don't agree. One function of constitutions are, as you say, to define the powers of institutions and to some extent to regulate relationships between them. For example, constitutions incorporating judicially enforceable fundamental rights regulate the terms of the relationship between courts and parliaments. The idea of parliamentary sovereignty arguably has the same function, establishing the primacy of the legislature in constitutional theory (and in the second, increasingly shoogly aspect of Dicey's formulation) limiting the power of other institutions to disapply Acts of parliament, or favour their own values and decisions. Historically (and as I say, our membership of the EU has undermined this), courts had no power to set aside UK legislation. The European Communities Act has undermined that to some extent. In Scotland, courts are even more powerful, able to strike down legislation of the Scottish Parliament as outside of the institution's powers if it conflicts with norms of ECHR & EU law. Just as a written constitution establishes detailed rules about what government and parliament can and cannot do which cannot be changed on a whim, the same goes for parliamentary sovereignty: under both system, the basic rules of the game are clear. Now, there is a strong argument for a written constitution and our uncodified constitution clearly imposes fewer legal constrains on the executive and legislature - but I'd argue that is a difference of degree rather than of kind.

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  2. One not entirely serious possibility has occurred to me. Perhaps a law could say that if the UK parliament passes any bill abolishing, suspending or reducing the powers of the Scottish Parliament, or amending the law itself, without the prior consent of the Scottish Government, then Scotland would immediately cease to be part of the UK - before the bill can receive the Royal Assent and become law.

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    1. Les,

      The problem being: a simple majority in parliament could change those rules too. We see something similar in terms of the fixed term parliament legislation. Per the Act, Westminster may only be dissolved for a general election if a qualified majority of MPs vote to do so. However, a bare majority of MPs could amend that section of the legislation is the qualified majority couldn't be mustered. Politically, this might look dodgy - even unsupportable - but legally it is a logical consequence of the simple principles undergirding our constitution.

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  3. This undergraduate tutorial problem is at once fascinating and a nightmare if, like me, you take an absolutist line on popular sovereignty. You've put your finger on the exact point of crisis - if I believe that the Westminster parliament should have unlimited sovereignty (and I do), then I have to accept that Holyrood can be abolished. The only way out of this is for Scotland to become a separate state, and I'm not very happy about being waltzed to this conclusion.

    In the past I have flirted half-heartedly with the Enoch Powell position (yikes!), which argues that there should be one Westminster parliament, and Brussels, Holyrood, the UN, and anything else which tries to constrain Westminster's sovereign power should be sent packing. Sometimes the incoming Scottish state looks oddly unattractive from this angle, because it seems to represent a retreat from democracy on a large scale. Alas, my intolerance of Brussels is vulnerable to the same criticism.

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    1. Tychy,

      I suspect the puzzle would be a nightmare for many folk, for a whole range of reasons! It underlines a point I made here a while back about David Torrance's suggestion that we should generalise the concept of sovereignty to encompass all forms of recognition given to institutions, including Holyrood (and I suppose, pushed to its logical conclusion, to local government too). For me, this blows the coherence and the distinctiveness of the idea of the sovereign to bits. Of course, the EU institutions envisage themselves as a manifestation of "pooling sovereignty" too. A phrase which I'm sure sends a shiver down your Powellian spine...

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    2. One of the problems with popular sovereignty is deciding where ‘the people’ come from. One line of thought says that peoples are created by states. This (crudely) is the position of Hobbes, who is one of the main sources of the English constitutional theory of absolute sovereignty. An alternative argument says pre-existing peoples (nations) create their own states.

      The truth surely lies somewhere in the middle. Nations and states are creatures of different logical types which interact over time: they help to create one another as well as helping to create themselves. There is nothing terribly mysterious about this. It reiterates a key insight of Saussure’s structural linguistics, that languages can only be understood by viewing them both synchronically and diachronically.

      Neil MacCormick has argued that legal systems are inescapably self-referential and self-validating. He is not worried by this, seeing it as a normal feature of systems thinking: 'such paradox, such question-begging, such circularity of reasoning, is perhaps built into our very understanding of system.'

      The problem for the current constitutional debate is that it is hard to identify a British people, either sociologically or constitutionally, in whom popular sovereignty could be located. Sociologically there is evidence that most Scots identify themselves more as Scottish than as British. The position in England is confused by a chronic confusion between Britain and England which carries over into mainstream English constitutional theory. Perhaps the simplest route out of this jungle is to vote Yes.

      It is tempting to turn this argument on its head: there can never be such a thing as absolute popular sovereignty because there is no such thing as an absolute people. Peoples – whatever else they may be – are negotiated and contested in specific historical contexts.

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    3. Really interesting thoughts, Dennis. Thanks for contributing them. Also lost in the constitutional debate, to my mind, is much of a sense of the UK as a state out of sync (I don't mean that in a pejorative sense) with the sort of nation-state thinking which fully emerged elsewhere in Europe in the 18th and 19th centuries). This gap is perhaps most visible in the attempts to talk about Britishness - I ought to tread carefully here, not being an enthusiast. What does a superarching multi-national nationalism look like? Is it formed in composite of the underlying nationalisms which contribute to its unity, or should it be theorised as a distinct and to some sense freestanding nationalism, detatchable from Wales, England, Scotland and (Norn) Iron? This might seem unnecessarily abstract, but it has practical connotations. While David Cameron talks about being diminished by Scottish independence, there is at least a suggestion in other quarters that Britishness would be essentially unaffected if Scots buggered off. The blue stays in the flag. If we thought about Britishness as being a union idea, and one part of the union departs, our sense of what it means to be British would of necessity also alter. Yet we hear remarkably little along these lines from Unionist politicians. Curious.

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    4. Thanks for the kind comments. One other thought comes to mind. I struggle to understand what MacCormick says about 'the people' in Questioning Sovereignty, which sometimes seems to veer close to contradiction. It maybe helps to make an analytical distinction between state-people and nation-people. A state-people and a nation-people may be extensionally identical, comprising exactly the same set of individuals. But the concepts are different. A state-people is defined by a particular state and its constitution: state-people = citizens. A nation-people may exist without any state or institutional structure (think of the Poles between 1795 and 1918). MacCortmick, I think, switches between the two senses without always signalling

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    5. @ Dennis Smith.

      Re popular sovereignty, it is easier to cope with the concept if you acknowledge the existence of a demos and leave it at that. Nationalism is (at least in theory) not always necessary to create or unite a demos, and indeed in Britain this has historically occurred through a suppression or compromising of nationalism(s).

      The present crisis is that over recent decades our democratic sovereignty - the means that we all have of controlling public life - has been steadily subdivided, pooled, and evaded. Westminster may seem so remote at the moment, and the political class so unrepresentative and insular, because they have shirked the responsibility of representing us and ceded powers to Brussels/Holyrood/the Governor of the Bank of England/ private contractors. The SNP, who are obviously all on the make, have exploited this crisis. In this interpretation, they are the elected equivalents of Atos or any other band of adventurers who have volunteered to assume a service previously provided by Westminster.

      Maybe voting YES will hasten the inevitable, but it is also an abandonment of powerful, large-scale, sub-national democracy.

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    6. @ tychy
      Sorry, I don’t follow the reasoning here. From my perspective the existence or non-existence of a British or UK demos is precisely the point at issue, so I can’t just acknowledge its existence and leave it at that. Demos obviously has a range of meanings. For the purposes of modern democracy, I would argue, the existence of a demos requires reciprocal recognition from all co-members and their voluntary commitment to a common scheme of rights and responsibilities. It is this shared commitment which makes democratic decisions binding even on individuals who happen to disagree with them. Maintaining a demos on these lines requires constant negotiation and compromise, reasoning and choosing: it can’t be taken as given or taken for granted.

      This is why I find a Scottish demos more plausible than a British or UK one (though not without problems of its own). Leaving aside the reservations that many Scottish voters have about a British identity and the chronic confusion between British and English, the idea of a British or UK demos has been bedevilled by the Irish problem. I’m influenced here by Linda Colley’s thesis in ‘Britons’ that British identity was historically constructed in the 18th and 19th centuries as a Protestant and liberal antithesis to French Catholic absolutism. This had the (possibly unintended) consequence of making the Catholic Irish non-British: they were not acknowledged as equals on the British mainland and they reciprocated, in many cases, by repudiating a British identity. Between 1801 and 1920 there was no demos which embraced English, Scots and Irish on an equal footing.

      The Scots got caught up in the wash of this disturbance. They were (by and large) safely Protestant but as Presbyterians they could not recognise the monarch as head of their national church. So they could not be English. As a result most Scots in the 19th and early 20th centuries ended up as unionist nationalists: they saw Scotland as one partner nation in a wider British union. As a further result they saw the UK not as a unitary state but as a union state, in the political scientists’ jargon. And this is another – perhaps fatal – problem with the idea of a British or UK demos: if the UK is not (and never has been) a unitary state, how can it have a unitary demos?

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    7. @ Dennis Smith.

      I too am steeped in Linda Colley's "Britons," and I do recognise that, perhaps coincidentally, many of the figures who I equate with the cultural heritage of the Union (Hume, Smith, Hutton, Stevenson) were deists or stoics or materialists who had only started out from Presbyterianism.There is a danger, though, in what you are arguing, of historical determinism or of putting up needless obstacles to a demos. There will be people voting in the September referendum who are not Scots and who may have lived in Scotland for only a few months and who may be leaving again immediately afterwards. But on the grounds of no taxation without representation they are just as much a part of the demos as you and I.

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    8. @ tychy

      Thanks. I completely agree with your last sentence. I think my answer would be to fall back on the distinction I was struggling to make in my second post above, between state-people and nation-people. Anyone who is on the electoral register in Scotland certainly belongs by right to the state-people. They may or may not also belong to the Scottish nation-people. This is a contingent question depending on their life-path. I don't see any fundamental problem here.

      I can see a case for restricting the use of 'demos' to mean what I have called state-people. This might be sufficient for legal and even constitutional discourse but for other, broader purposes we also the idea of nation-people. We need to be able to discuss how the two ideas (and entities) interact.

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  4. I can't remember the legislation or indeed the year but Tony Benn made a mournful note in his diary marking the moment when the EU passed a law binding the UK to something, without the Uk voters having any say on the matter.

    Kudos again to yourself and Ian for digging in this bog and producing light without heat. Way out of my depth as usual here, but just to state the obvious, constitutions only have the meaning we impose upon them. Was the American Civil War a just war for rights enshrined in the constitution or was it a 'War of Northern Aggression'? That argument was ended temporarily not by the lawyers, but in the field of battle and with over half a million dead. And it is not resolved.

    There will always be someone standing in the wings ready to say 'Away with this reading - here is what it meant. . .'



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    1. Edwin,

      I'd sympathise with your point to some extent. Depending on what it says, the constitution isn't exclusively a legal document, but can have significant political resonances too - and like all texts, there can be powerfully discordant readings. Peeking over the Atlantic to the political debates in the United States affords some sense of the political significance of this.

      If we do vote Yes in September, these issues are our issues. If we adopt a short, functional, un-uplifting constitution, we might foreclose these debates. But if, as looks likely, we adopt a bumper text with aspirational and humanitarian goals - whatever those might be - we can expect decades of debate. Which will be droll for folk like me, so there's something to be said for it!

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    2. 'Peeking over the Atlantic to the political debates in the United States affords some sense of the political significance of this. '

      I think myself we can spend too much time seeking parallels with the fine words of those (in the painting at the top) who led the slaveholder rebellion of 1776 - Brian Cox is the latest figure to make silly noises about their big hearts and humane intentions, Hell, Jefferson doesn't even seem to have liked we Scots very much and had to be argued into taking out an anti-Scots reference in his draft of the DOI!

      If we go for a long version, we could take Jefferson's words about the Scotch and invert them into a spiel about Fasslane and the Bush/Blair wars. That would be fun!

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    3. I do quite like Jefferson's quotation that the earth belongs in usufruct to the living, and we should beware of letting dead old men's preferences control our polity. That, of course, is an argument agin a difficult to amend constitution setting out fundamental rights -- not a message, perhaps, which the Yes movement as a whole is particularly keen on hearing.

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    4. The current Private Eye points out that the 1999 Venezuela constitution was hailed by chavistas as 'the world's most perfect constitution', guaranteeing social justice and all manner of rights to dissidents - the Eye column reckons that now over half of its 350 articles are in 'tatters'.

      Without good will fine words will always mean very little. If a Yes vote comes in September, it is of course very unlikely that we will see the Canongate lined with bodies, or a Scottish Army battalion kicking doors down in Peebles, but the building of good will in Scotland - however we vote - is essential.

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    5. It is an important point, Edwin. One, as it happens, which I was talking to my undergraduate students about a couple of weeks ago. Does a mismatch between norm and practice matter? If, for example, we enshrine a right to housing say, is the aspiration not at least as important as the achievement? Following yonder star, etcetera. A number of recent constitutions have been in this mode - cf the South African constitution. An independent Scotland may be better placed to make these aspirations a reality, but it continues to pose the question: what should our constitution be for? Is an aspirational statement of national purpose part of that? Should it be?

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  5. Some commentators would disagree with your assertion of the unlimited sovereignty of the UK Parliament and would point up Lord Cooper in McCormack (1953) and Lord Hope in both AXA and Imperial Tobacco vs the Lord Advocate and others that UK Parliamentary sovereignty is in fact limited by law and the claim of the purely English concept of unlimited parliamentary sovereignty has no equivalence in Scots Law or constitutional practice as it infers Scotland was subsumed by England on the signing of the Treaty of Union which is not the case as the UK Parliament is a construct of the two original sovereign, signatory parliaments and that for only one set of constitutional practices to be 'law' and considered 'binding' is contrary to the Treaty of Union and Article 19 of the Treaty of Union (Lord Cooper 1953).

    With regards to bills, acts and statutes of the Scottish Parliament Lord Hope has made clear the UK Supreme Court has no power to set aside any such bill, statute or act as long as these conform to the considered will of the people of Scotland - which is paramount. Following Lord Cooper's argument on Scots Law, constitutional practice and 'considered will'.

    Some are taking these judgments to mean that the UK Supreme Court has now agreed that the UK Parliament's unlimited sovereignty (and the Scotland Act 1998) are in fact limited by law.

    Others in the legal world are now going further and are considering the implication of the Scottish constitutional concept of 'considered will being paramount' having equal force to the purely English constitutional concept of the 'crown in parliament' surely leaves bills of the UK Parliament which ignore the 'considered will' (as in the case of the 2012 Welfare Reform Act where only one Scottish MP voted in favour) potentially open to challenge in the UK Supreme Court and run's rough shod over Bagehot's and others constitutional claims of the mid 19th century, as they are based on a fundamental error and conflation of the supremacy of English Law and constitutional matters, with regards to the nature of the Treaty of Union and the actual partnership between the Parliaments of Scotland and England and Wales in the new UK Parliament. ( Lord Cooper 1953)

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    1. Peter,

      Did you read Graeme Cowie's comment following on from my blog about the ex-patriate legal challenge to the independence franchise? Much of that is relevant here too. A great deal of what you say here is - I'm sorry - total rubbish. You suggest that:

      "With regards to bills, acts and statutes of the Scottish Parliament Lord Hope has made clear the UK Supreme Court has no power to set aside any such bill, statute or act as long as these conform to the considered will of the people of Scotland - which is paramount."

      This is a misreading of AXA. Look again at the judgments again. You'll find no basis for this claim whatever in them. Scottish courts can set aside Acts of the Scottish Parliament on grounds that they relate to reserved matters, or are incompatible with ECHR or EU law. However "considered" the will behind them. Indeed, Lord Hope is entirely explicit in AXA as I recall: Holyrood's will is not paramount in law, because unlike Westminster, it isn't sovereign (and even if we take Lord Cooper's argument about the Act of Union seriously, that does not take forward the specific issue of Labour's proposals at all. It isn't relevant).

      In AXA, Lord Hope decided that the ordinary common law grounds of review in administrative law - irrationality and procedural impropriety - don't extend to the Scottish Parliament's decision-making. That is miles short of the grand constitutional statement you suggest the Supreme Court has recognised.

      You make an important point about the distinctive claim, recognised in the blog post, that sovereignty may be limited by the Act of Union. There are also one or two other fragments emerging from the courts, which might suggest and develop into a more substantial constraint on orthodox conceptions of parliamentary sovereignty. But these are only scraps at this stage.

      Graeme Cowie is completing his doctorate in constitutional law. I teach constitutional law in a couple of universities. You seem remarkably reluctant to revise your opinion on these matters, but please, for the love of God, take our word for it.

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    2. What if you are wrong?

      My own professional concern with 'expertise' is it is often self supporting and comes about by the repetition of 'held truths'. Medicine abounds in 'held truths' - many which are still held and taught to undergraduates to this day in spite of being in error and having no relationship to 'what is'. Everyone 'knew' what caused stomach ulcers until an outsider looked at the evidence and showed they were caused by a bacteriological infection.

      I have, in over 40 years of CPD, built up a healthy disrespect for 'experts' and intellectually seek to test their ideas as far as I can. As Lord Cooper is looking at the core document when making his statements with regards to the nature of the UK Parliamentary constitution then they must have value over the 300+ years worth of layers bending the law to fit with political needs and calling this the 'constitution'. Especially as Lord Cooper calls into question the whole notion of UK Parliamentary sovereignty as he considers it being founded on a falsehood which 'experts' appear to disregard - that Bagehot was wrong in his prime assumption.

      The UK is made up of two sovereign realms who agreed to share their parliamentary sovereignty in 1706 in a combined UK Parliament. Article 19 of the Treaty of Union is quite clear on this split - especially in law - which means Elizabeth is Queen of Scots with regards to the Claim of Right (Scotland) of 1689 and is bound by its statutes. Further in 1953 the Lord Advocate conceded on the UK Parliament's behalf that 'all time' in Article 19 meant exactly that and further any change or alteration to the Treaty of Union could only be negotiated between the original, signatory, sovereign parliaments.

      This leaves me wondering what role can the UK Parliament have in its own demise on a 'Yes vote' as such a change or alteration to the Treaty of Union can only be agreed by the two original sovereign parliaments recalled from their temporary suspension - as the UK Parliament conceded in McCormack.

      There are legal authorities who take a very different view to your good self on this issue - what if they are also right?

      About the only part of my professional expertise that has remained true over the last 40 years is never let the sun go down on un-drained pus. The rest of the profession 'held truths' of my graduate and immediate post graduate years are mostly in the intellectual and clinical dust bin.

      Professor Brown is now getting his knickers in a twist as to what will be the nature of Westminster on a Yes vote. His article in the Telegraph in response to the proposed ten minute bill excluding Scottish MP's from English only bills on a 'yes vote' left this reader confused but with the strong indication the May 2015 elections may well be to the recalled sovereign parliament of England and Wales (with NI) alone.

      Think of me as chronic toothache, it comes and goes and mostly can be ignored but one day ....

      Yours aye ...

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    3. Peter,

      Whether or not Lord Hope made the observations you claim in his judgment in AXA & Ors v Lord Advocate isn't a matter of opinion or speculation or even expertise - it is simply a matter of record. Read the judgment. It doesn't support your position.

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  6. I'd be interested to hear your thoughts on some practical examples.

    I have no legal knowledge, but I'm in favour of a written constitution mainly as a tool for 'the people' to be able to hold it's parliament to account.

    One of my main concerns regarding modern politics is the increasing influence of big business through large political donations. The obvious example would be the Tory party receiving massive funding from the city and the subsequent lack of reform to the banking sector.

    Now Electoral Reform have suggested that we could limit donation amounts or even fund political parties through the public purse. That sounds attractive to me I must admit.

    In reality however, is any politician going to vote for 'public funding' only ? Are they willing to give up lucrative deals that could limit directorships with companies if we outlaw business donations and therefore influence ?

    I doubt it.

    And even if such a law was passed,from what I've read in your article, it could easily be revoked immediately by the same or subsequent governments without any input from the populace.

    Surely this is an example of where such a policy could be effectively written into a constitution and make it untouchable by politicians without the consent of the people ?

    I could think of other things. The right to recall politicians, hell, the right to recall a whole government if they reneged on election promises ?

    What about the workfare scandal in which Parliament passed emergency legislation to overturn a judges decision that jobseekers were due payment for the hours they worked for nothing ?

    Or indeed, the right of the people to be consulted if a Scottish government decided to sell off public assets to private businesses (Scottish Water).

    I'm grateful for the article, it's very interesting, but I'd be interested if you took it in another direction and looked at some of the issues I've mentioned.

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    1. Nick,

      Interesting examples. To pick up on just a few of the points you raise, it is important to keep ideas of (a) legal possibilities and (b) political likelihoods distinct in our minds. Legally, for example, it would be straightforward for Westminster to disestablish Holyrood, but politically? You'd imagine not. The problem, as you allude to, is that other political commitments are more readily varied, departed from or simply eliminated by incoming regimes. That would go for the basic rules of the game - can we have recall elections for MPs? - and the other issues you cite. Of course, the extent to which public participation is mandated depends entirely on what you write into your constitution, if you commit to codifying one and dumping parliamentary sovereignty. You might, for example, have a streamlined amendment process, requiring a 2/3rds vote in the parliament to amend the constitution. Alternatively, like the Irish, we might enshrine the requirement to seek and win a referendum to make any changes. The same goes for the legal regimes governing party political funding. Do we include that in the basic law, and if so, how easy is that basic law to amend, and what procedures should govern those amendments? Bread and butter issues of constitutional design - and questions which an independent Scotland will face in short order, if September's poll throws up a Yes result.

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